McDonnells seek a new way to fight corruption charges against him and his wife

Former Virginia Governor Robert F. McDonnell has found a new battleground to attack the public corruption case against him and his wife: the instructions a federal judge will give a jury at his trial.

In court filings late Monday, McDonnell (R) proposed that Judge James Spencer tell jurors that “... merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, ‘official acts,’ even if they are settled practices of the official.” Those actions form the basis of prosecutors’ public corruption allegations against McDonnell and his wife, and to substantiate the charges, prosecutors must show the actions the McDonnells took were “official.”

The McDonnells were charged in January in a 14-count indictment with lending the prestige of the governor’s office to Richmond businessman Jonnie R. Williams Sr. in exchange for his lavishing them with gifts and money. Specifically, prosecutors alleged the couple hosted Williams at events and arranged meetings for him with other state health officials as part of an effort to promote products of a company he used to run, and in return, Williams gave them money, clothes and golf outings.

If he gave the instruction defense attorneys are seeking, Spencer would be telling jurors that the things the McDonnells did were not official, and that would provide a significant boost to defense attorneys’ argument that they were not criminal.

The argument is one that the McDonnells’ attorneys have made before, unsuccessfully. They asked Spencer to dismiss the case on the same grounds -- that the McDonnells did nothing official for Williams -- and Spencer denied their request.

The proposed jury instruction, though, seems to foreshadow that the attorneys will raise the same issue to the jury, and they’d prefer to do it with Spencer’s help.

“A government official’s decisions on who to invite to lunch, whether to attend an event, or whether to attend a meeting or respond to a phone call are not decisions on matters pending before the government. That is because mere ingratiation and access are not corruption,” the McDonnells proposed Spencer tell jurors. “Nor is an official’s use of his official position to promote a purely private venture. The questions you must decide are both whether the charged conduct constitutes a ‘settled practice’ and whether that conduct was intended to or did in fact influence a specific official decision the government actually makes — such as awarding a contract, hiring a government employee, issuing a license, passing a law, or implementing a regulation.”

In more than 100 pages of proposed jury instructions, Robert and Maureen McDonnell also asked Spencer to instruct jurors on the so-called “good-faith defense” -- essentially telling them that prosecutors must prove the McDonnells did not simply make honest mistakes in judgment. And they asked that he stress that each could be found not guilty individually.

Maureen McDonnell asked that Spencer tell jurors that she as First Lady was not a public official, and that convicting her on many of the charges would require them to believe she acted as her husband’s agent in a conspiracy.

For their part, prosecutors asked Spencer to tell jurors that an official act “may include acts that a public official customarily performs, even if those actions are not described in any law, rule, or job description,” and the public official “need not have actual or final authority over the end result sought by a bribe payor so long as the alleged bribe payor reasonably believed the public official had influence, power, or authority over a means to the end sought by the bribe payor.” They did not ask the judge to list any specific examples of official acts, such as arranging meetings.

Prosecutors also asked the judge tell jurors that one cannot avoid responsibility for a crime by deliberately ignoring the obvious.

The McDonnells have pleaded not guilty to the charges against them, and their trial is scheduled to begin at the end of this month.

Matt Zapotosky covers the federal district courthouse in Alexandria, where he tries to break news from a windowless office in which he is not allowed to bring his cell phone.
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